On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-480-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 1, 2010 - Decided
Before Judges Axelrad, Lihotz and J. N. Harris.
Defendants appeal from an order denying their application for attorneys' fees to be paid by opposing counsel pursuant to Rule 1:4-8, after plaintiff's complaint was dismissed at the close of his case. Defendants maintain plaintiff's counsel "used the [p]laintiff in pursuing a flawed cause of action for wrongful termination based on the Conscientious Employee Protection Act [(CEPA), N.J.S.A. 34:19-1 to -14], for her own financial gain." Judge Buchsbaum, who presided over the truncated jury trial, considered defendants' fee request and denied the application. The written statement of reasons supporting the court's determination found plaintiff and his counsel "possess[ed] a reasonable and good faith belief as to the merits of th[e] case." The judge noted three motions for summary judgment had been denied and he had "made it abundantly clear at trial, that [the court] continued to believe summary judgment had been properly denied."
On appeal, defendants contend a sanction in the form of a counsel fee award was improperly denied because plaintiff's allegations were without evidentiary support and the litigation was conducted in a manner that needlessly increased its cost.
Following our review of these arguments, in light of the record and the applicable law, we conclude Judge Buchsbaum did not abuse his discretion. Accordingly, we affirm.
Plaintiff was employed as a maintenance supervisor at the Aspen Falls apartment complex in Aspen Falls, Pennsylvania, which was owned by defendant Sherwin Drobner. Drobner also owned Heartland Farms, LLC (Heartland), an ostrich farm in Hamilton Township. When Heartland commenced business, plaintiff had performed several maintenance tasks for it, in addition to his responsibilities at the apartment complex.
On November 2, 2002, plaintiff went to Heartland to retrieve a snow blower needed at the apartment complex. Plaintiff encountered nineteen dead ostriches. The day after he visited the farm, plaintiff called Drobner but received no answer. Plaintiff called Drobner a second time, again without success. The message plaintiff left his employer did not mention the dead ostriches.
Plaintiff returned to Heartland on December 9, 2002, "to see what was going on." He found more dead birds, took more pictures, and tried to provide food and water for the live birds, but was unsuccessful because the barn was locked.
Plaintiff then notified The Trentonian, a local newspaper, stating "the birds should have been better taken care of, and [he] didn't like what [he saw]." Plaintiff provided the reporter with Heartland's address and the pictures he had taken. The Trentonian reports alerted the Society for the Prevention of Cruelty to Animals (SPCA). Officer John Micklewright went to Heartland to inspect the dead ostriches, and determined there was no food or water in the ostrich pen. As a result of the SPCA investigation, Drobner and Heartland's manager were charged with animal cruelty.*fn1
One month later, plaintiff was terminated from his position, prompting his filing of this matter. Plaintiff's complaint alleged defendants' wrongfully terminated him in retaliation for his disclosure. Discovery commenced and plaintiff's deposition was held. Thereafter, defendants sent correspondence to plaintiff asserting the CEPA claim was frivolous and warned they intended to seek counsel fees if they ultimately prevailed.
Defendants moved for summary judgment, which was denied. Discovery continued, and defendants again moved for summary judgment. The same motion judge considered the application and again denied the request, finding plaintiff had "established a prima facie CEPA claim."*fn2 A third summary judgment motion was filed by defendant. A different motion judge determined the application was premature as discovery had not been completed.
Plaintiff subsequently sought a substitution of counsel, changing to his current attorneys, which initiated that judge's recusal. No formal order on the third summary judgment motion was entered. Defendants requested a change in venue and the ...